Leadway Assurance Company Limited Vs Zeco Nigeria Limited (2004)

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, J.S.C.

The plaintiff’s claim against the defendant at the Federal High Court, Kaduna was in the following terms:

(a) DM 111,638.80 Deutsche Mark or N6,698,280 its naira equivalent at the current exchange rate of N60.00 to DM1 being the value of the goods insured with the defendant but not delivered to the plaintiff.

(b) N150,000.00 being the amount the plaintiff paid for clearance and import duties for the goods imported and insured with the defendant.

(c) N2,000,000.00 being general damages for the embarrassment and loss of business due to non-payment by the plaintiff to the manufactures for goods supplied occasioned by the refusal of the defendant to pay the plaintiff which led to almost total business collapse of the plaintiff.

(d) DM 41,045.48 being value of goods packing and sea freight as per invoice numbers 26824,26825 and 96296.

The main defence of the defendant was that no report of the alleged loss of the goods insured was made to it within 21 days of the discharge of the goods from the ship as required by the contract of Insurance.

The learned trial Judge found that an oral report of the loss was made by the plaintiff to the defendant within the stipulated period and thereupon entered judgment in favour of the plaintiff for the sum of N5,542,641.54.

The defendant’s appeal to the Court of Appeal was dismissed. The defendant has further appealed to this court.

The defendant, as appellant, has raised eight (8) issues for determination.

These read as follows:

1. Whether the Court of Appeal acted properly when it failed and neglected to consider everyone of the matters which the appellant claimed that the respondent ought to have pleaded in order for his statement to disclose a cause of action and whether in the process of considering whether the statement of claim filed by the plaintiff disclosed a cause of action the court is entitled to concern itself with any document or process other than the statement of claim which was filed by the plaintiff.
2. Whether the Court of Appeal ought to pin point the paragraphs in the statement and it ought to do this separately and distinctly in respect of each and everyone of the matters complained of and the effect of its failure to meet these requirements and whether the court should have limited itself to considering the contents of the statement of claim in the process of considering whether the statement of claim disclosed a cause of action.
3. Whether the Court of Appeal was right in holding that the statement of claim in this case contains a pleading that the plaintiff had insurable interest in the property insured and whether in considering the issue, the policy of insurance is or can be of use.
4. What is the effect of the failure of the Court of Appeal to consider the kernel of the argument of the appellant before it which sought to show that there was a distinction between reporting a loss and making report of a claim and that what the contract between the parties required was the latter whereas what the plaintiff alleged in its pleading and sought to prove by evidence was the former and in failing to decide the issues which it was called upon to decide in respect of issues 1and 2 before it, to wit whether the issue whether the plaintiff reported a claim orally within 21 days from the date of the occurrence of the discovery of the loss arose from the pleadings (not in evidence) and whether evidence of oral report of claim was admissible because it was not pleaded.
5. Whether the Court of Appeal erred in law in holding in effect that the defendant wrongfully failed to join issue with the plaintiff in respect of allegation of the plaintiff in its reply to statement of defence that notice was given to the defendant within time when there is an implied joinder on allegation in a reply in the circumstances of this case.
6. Whether it was proper in this case to consider the issue whether the plaintiff reported the claim to the defendant orally within the 21 days required by the contract of insurance and in utilising his finding thereon when that issue did not arise from the pleadings.
7. Whether evidence aimed at showing that a report of claim was made orally by the plaintiff to the defendant was properly admitted in evidence when no fact relating to that issue was pleaded.
8. Whether the statement of claim by the plaintiff in this action discloses a cause of action when the purport and effect of the contract of insurance on which the action was based were not pleaded such that the terms and conditions and breach of that contract and all other material facts including the following

(i) existence of insurable interest in insured property on date of insuring or of loss or damage.

(ii) peril or risk insured against.

(iii) consideration for issuance of the policies.